Protecting Freedom of Navigation in the South China Sea

If America wants to stand up for international law, it should start by ratifying the treaty.

By Douglas Gates for The Diplomat

May 28, 2015

American foreign policy is at its best when it builds up international norms and structures that deter aggression and maintain stability for everyone over the long term. In that vein, the United States, like Great Britain before it, has demonstrated an unshakeable commitment to the free navigation of the seas by warships and commercial vessels alike in order to facilitate international trade. This effort has fostered, in part, the greatest period of global economic development in history and has perhaps benefited China more than any other state. However, China now seems intent on upsetting that order for its own parochial gains by aggressively consolidating its territorial claims in the South China Sea, in violation of international law and to the dismay of its neighbors. In its response to this campaign, it is critical that the United States maintain its commitment to international law and encourage the Chinese Communist Party to abide by the long-standing rules of the system for the benefit of the entire region.

Defense Secretary Ash Carter recently floated a proposal to challenge Chinese territorial claims using American warships and aircraft under the broad umbrella of the Navy’s Freedom of Navigation program. The U.S. Navy has been conducting maneuvers in East Asia and around the world for decades, capitalizing on its command of the sea to challenge the excessive claims of allies and rivals alike by driving through a contested area and treating it as international waters. These missions demonstrate a deep commitment on America’s part to the foundational principles of maritime law expressed in the UN Convention on the Law of the Sea (UNCLOS). It has done so despite the fact that the U.S. has yet to ratify the 1982 treaty because of domestic opposition in the Senate, a point of contention for the countries on the receiving end of those challenges and a point of embarrassment for the American officials charged with carrying them out.

Carter’s proposal is a bold step in the right direction and represents a major shift in the Obama Administration’s approach to the South China Sea. Freedom of Navigation operations have been a regular facet of the Navy’s approach to East Asia for years. The Navy has regularly challenged the territorial claims of its friends in the region, to include Malaysia, Vietnam, Taiwan, Indonesia, Cambodia, and even close treaty allies like the Philippines, Japan and South Korea. Because of its excessive maritime boundaries, restrictions on survey activity in its exclusive economic zone, and claims to exercise security jurisdiction outside of its twelve-mile territorial waters, China has been an annual target of U.S. challenges for several years. Its most recent claim to control the airspace over the entire East China Sea through its newly created Air Defense Identification Zone gave the United States yet another opportunity to reject Chinese attempts to influence the development of international law. Carter’s proposal, then, is an organic and incremental development of the United States’ position and should not be a surprise to Beijing. Washington is committed to enforcing the law on both friends and rivals alike.

American operations have traditionally challenged developments in the East China Sea, where there are fewer claimants to territory and, with the exception of the disputed Senkaku Islands (which the Chinese call the Diaoyu Islands) under Japanese administrative control, the boundaries are clearer. However, China’s sustained efforts to push its neighbors out of the Paracel and Spratly Islands and declare the entire South China Sea “blue national soil” have changed the American calculus and drawn increased attention from Washington. Although the U.S. professes neutrality in these disputes and concedes that there is at least some validity to the claims of all sides, it has firmly insisted that the matter be resolved peacefully. The use of bullying, intimidation, or violence to resolve a territorial dispute would be devastating to the order and stability that the international community has worked to build since 1945 (see Crimea) and to the revolutionary economic development that has transformed Southeast Asia in recent decades. China’s recent push to build on the small rocks it claims in order to turn them into fully-fledged islands and military air strips with accompanying territorial seas and exclusive economic zones is explicitly not recognized by UNCLOS. These acts, combined with China’s refusal to acknowledge or cooperate with the Philippines’ legal challenge to Chinese claims at the Permanent Court of Arbitration at the Hague, demonstrate that China views the law as a malleable tool to be trumpeted when it supports Chinese claims and ignored when it stands in their way.

The U.S. Navy must conduct its challenges with both determination and tact. In order to avoid a repeat of the 2001 Hainan Island P-3 incident, it must be clear to everyone that American warships bear no hostile intent to the Chinese units nearby and that American actions are grounded in international laws that apply to all parties. China has already condemned the new proposal, but its criticism resembles previous resistance to U.S. military operations near China such as surveillance flights and survey ship deployments off China’s coast that have been going on for years. As before, the United States should push forward while consistently pressing its legal claims within UNCLOS guidelines. In the near future, the United States should build on its activities by including military vessels from other countries in the region in its next round of challenges, especially ships and aircraft from Japan, the Philippines, Malaysia, Singapore, and Vietnam. These real-world challenges should accompany a concerted, multilateral diplomatic and legal effort to deal with the outcome of these operations and to reach a long-term solution through resource sharing agreements, clear articulations of disputes, agreements for independent arbitration, and an updated code-of-conduct that binds all parties to the pursuit of non-violent solutions. While the issue may be bogged down in talks for years, it is much better to hash it out at the negotiating table than at the barrel of a gun at sea.

Most importantly, it is critical that the United States demonstrate an enduring commitment to the law by ratifying the UN Convention on the Law of the Sea. For too long, the Senate has allowed narrow domestic interests to overcome the broader moral and strategic obligation for the United States to play by the same rules as everyone else. Until the U.S. participates fully in the legal framework, it will have diminished credibility in dealing with states who are parties to the Convention but who refuse to abide by its terms. Once the Obama Administration completes its effort to finalize the Trans-Pacific Partnership, the Law of the Sea Convention should be its next foreign policy goal in the Senate.

The United States is the only actor in the region with the power, resources, and relationships necessary to diffuse tensions and bring about an enduring solution. Above all, this solution must be grounded in international law that provides clear guidance and boundaries for all states, including the U.S. As it moves to apply its various instruments of power, the United States must demonstrate an abiding commitment to that law by couching its actions in legal terms and engaging China and its neighbors in diplomatic efforts to clarify and enforce existing law. Most importantly, however, the U.S. should start by shoring up its own legal standing by ratifying UNCLOS. Until that step occurs, China has little reason to listen to American lectures about following the rules.

Douglas Gates is a former active duty naval officer who worked on the Navy’s Freedom of Navigation program in East Asia in 2010-2011. His most recent assignment was to the U.S. Naval Academy in Annapolis as an instructor of Political Science.